'Broken trust': City Council questions top lawyer on Jacksonville Confederate monument removal

Jacksonville General Counsel Michael Fackler met with Mayor Donna Deegan and her staff while his office was drafting a formal opinion this month on the mayor’s authority to direct the removal of statutes from a Confederate monument, but Fackler said those meetings did not involve anyone asking him to reach any particular conclusion.

Some City Council members said they weren’t convinced. Council member Kevin Carrico said it “sounds like the Office of General Counsel folded due to political pressure.”

Fackler said that wasn’t the case.

“It was not at the request of the mayor. It was my honest attempt to call balls and strikes,” Fackler said.

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City Council President Ron Salem called the meeting for all 19 members to ask Fackler, the city’s top attorney, about how he reached his opinion that allowed Deegan to remove statues from the “Women of the Southland” Confederate monument.

Deegan ordered the Dec. 27 removal after Fackler advised her that she did not need council approval to use private financial donations for the work. In the weeks since, debate has surfaced over whether she needed to obtain a certificate of appropriateness for the removal because the monument is in a historic district.

Only nine council members, all Republicans, attended the two-hour meeting. They did not decide on action moving forward, but several members left questioning Deegan’s influence on the opinion.

“I think the general counsel was supposed to call balls and strikes,” Salem said after the meeting. “[Deegan] has said that multiple times. I’m not convinced that occurred in this case.”

All options are still available to council, Salem said after the meeting. He felt the majority of his questions were answered, but his colleagues may decide they want to form a special investigatory committee – as council did in 2020 when digging into the attempted sale of JEA. 

Salem and other council members in attendance described a breach of trust with the Office of General Counsel, who is the legal authority for all of city government.

Salem said he would work to repair the relationship, but he was also considering hiring an outside lawyer purely for City Council to consult – as it did with hiring its own consultant for stadium negotiations.

The primary controversy discussed Thursday involved whether Deegan asserted influence over Fackler’s final opinion, pushing him to give whatever answer would result in authorizing the statue removals.

The speculation stemmed from a meeting Fackler had with two of Deegan’s top staff members the day after Office of General Counsel attorneys debated if he made a mistake in his initial advice last month.

Deegan, who has opposed council’s “political retribution and gamesmanship” when discussing the monuments, said her office never pushed Fackler into an opinion but acted on the advice he gave her.

Creating a timeline: what led to Fackler’s final opinion?

Deegan announced Fackler, formerly a private attorney, as her pick as general counsel Sept. 20, though he still needed to be confirmed by City Council. He took over the acting position in the meantime and met with Karen Bowling, the city’s chief administrative officer, Nov. 8 to discuss Deegan’s legal ability to remove the monument, he told council.

City Council then confirmed Fackler to the position Dec. 12, and he worked largely on his own to develop his advice to Deegan regarding the monument. He initially determined the monument was not a “contributing structure” to the Springfield Historic District so there was no need to obtain a certificate of appropriateness from the Jacksonville Historic Preservation Commission.

Salem asked Fackler for an official, written legal memorandum Jan. 2, 2024 – making him Fackler’s client, not the mayor’s office. Fackler then involved a number of senior attorneys in the office, including former General Counsel Jason Teal. Fackler said he believed he had previously made a mistake “out of hubris” in thinking he could find the right answer alone.

Fackler and the staff expanded on his initial research and met Jan. 10, deciding that the monument likely did require a certificate of appropriateness. Fackler said he then “had several sleepless nights” thinking he may have given the mayor incorrect advice in December.

Fackler met with Bowling and Kelli O’Leary, deputy chief administrative officer, Jan. 11. Fackler told the Times-Union the “status” of the memo came up in conversation after discussing other topics.

“I said ‘I'm concerned, based on this new information that I'm still digesting, that my opinion might change,’” Fackler told council members of his Jan. 11 conversation. “And it wasn't so much that I was concerned about agreeing with the mayor. It’s that I had provided her with legal advice that I was concerned now it was wrong.”

“And that would have been a horrible conversation for me, and so that's when we retrenched, so to speak. I worked with Mr. Teal, and the advice didn't change, but the method changed.”

Fackler said he met the following day on Jan. 12 with Teal in the morning. Teal was one of the attorneys who advised Fackler that a certificate of appropriateness was necessary for monument removal.

He recalled that Fackler told him he had a "difficult conversation" with the "mayor or mayor's staff" that "prompted the conversation about taking another look at how we were going to present it or what we were going to present in the final memo."

Teal then described the process Fackler previously disclosed to council – the team looked at the 1991 ordinance that outlined what actions necessitate a certificate of appropriateness and decided that removing the statutes did not trigger the requirement.

Fackler also met on Jan. 12 with Deegan and Bowling when they came to his office. He told the Times-Union in an email that meeting happened in the afternoon.

“We talked about the process and my concerns about making sure that we get the right answer at the end of the day, but we did not talk about specific details,” Fackler said.

He said they “did talk generally whether the advice I gave her previously was going to remain consistent – that she did have the authority and there was nothing to prevent her” from taking the action she did with the monument. “That was the substance of that conversation.”

Fackler then presented the final memorandum to the Rules Committee Jan. 16.

Salem says ‘it’s clear’ mayor had influence, Fackler and Deegan disagree

Fackler told council members he worried he had given wrong advice, but that he did not feel pressured to give the mayor a certain answer.

Salem said he felt the mayor’s influence led to Fackler’s ultimate opinion.

“My take from today it appears that Mr. Fackler changed his mind,” Salem said. “And it appears the mayor influenced that from what we heard, and I’m struggling with that.”

Council member Nick Howland repeated his previous stance that the mayor abused her power.   Carrico said the opinion seemed like the office decided to “beg for forgiveness instead of ask for permission.”

Council members did not ask Bowling or O’Leary to speak about what happened at either meeting.

Phil Perry, the mayor’s chief communications officer, told the Times-Union that Fackler communicated to the office in the meetings “that he needed to make sure he provided sound advice and that he was continuing his research into whether or not a certificate of appropriateness from the Planning Department was needed.”

In a statement after the meeting, Deegan said she and her team let Fackler make his own decision.

"There seems to be a lot of projection going on with some council members,” Deegan said. “At no time did I or my staff exert any pressure or try to influence the decision of the General Counsel. My message to him has always remained the same from day one: call balls and strikes."

Salem has already filed legislation that would prevent mayors from using private donations without City Council approval. He was not currently planning any other action, but other council members may request other legislation or special committees.

Contractor hired off-duty JSO officer for security

The meeting also examined how the city deployed private security personnel at taxpayer expense and how Acon Construction, which removed the statues, hired an off-duty Jacksonville Sheriff’s Officer at the company’s expense to provide security during the takedown of the statues.

The mayor’s office did not tell the Sheriff’s Office that the city would be removing the statues. Sheriff T.K. Waters said if he’d been told in advance, his office would have assigned several officers in a coordinated way in case of any problems involving the crowd of onlookers.

The request Acon made through the Sheriff’s Office to hire an off-duty officer said the officer would monitor a construction project project at the park, Waters told council. Waters said the officer didn’t know he was responsible for the safety of a crowd until he arrived.

Considering the volatile nature of the situation, having only one police officer there “put him in a risky position, and we never do that,” Waters said.

Waters said the Sheriff’s Office does extensive training to deal with public disturbances and riot control. “And I can tell you that a private security company will not have that training and is not capable of doing what we’re capable of doing,” he said.

Bowling said the administration’s planning put in place four private security guards and the off-duty sheriff’s officer at the site. She said a Sheriff’s Office substation is 3 miles from the park if there had been a need for more police.

Still, she said she should have told Waters about what would be happening. “In hindsight, I have all the respect in the world for the sheriff, so I would have called them,” Bowling said.

The mayor’s office told the Times-Union after the meeting there was an adequate amount of private security onsite. The event didn’t create any clashes between advocates for and against the monument. Almost everyone watching cheered the removal as those who wanted to keep the monument intact stayed away.

The city used an existing contract with First Coast Security for the security guards at a cost of about $900 for their work that day. Council members said that expense runs counter to previous statements by the administration that no taxpayer money was used.

Fackler said he did not previously know about the taxpayer cost for the security guards when he did his legal analysis of whether the mayor could act without getting City Council approval considering private donors were paying the $187,000 cost of the Acon contract.

Bowling then stepped to the microphone and told council the administration would work with private donors to cover the First Coast Security expense.

The privately raised funds went through 904WARD, a Jacksonville nonprofit, to Acon. The Jessie Ball duPont Fund contributed part of the money. 904WARD has declined to identify the other donors.

This article originally appeared on Florida Times-Union: City Council questions Deegan's influence in Confederate monument opinion